Keynote: the Crisis and Criminal Justice

• Publication year: 2010

Georgia State University Law Review

Volume 28 . „

Article 3

Issue 4 Summer 2012

4-3-2013

Keynote: The Crisis and Criminal Justice

Bernard E. Harcourt

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Harcourt, Bernard E. (2011) "Keynote: The Crisis and Criminal Justice," Georgia State University Law Review: Vol. 28: Iss. 4, Article 3. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss4/3

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KEYNOTE: THE CRISIS AND CRIMINAL JUSTICE Bernard E. Harcourt

There has been a lot of recent debate over whether the economic crisis presents an opportunity to reduce prison populations and improve the state of criminal justice in this country. Some commentators suggest that the financial crisis has already triggered a move towards reducing the incarcerated population. Some claim that there is a new climate of bipartisanship on punishment. Kara Gotsch of the Sentencing Project, for example, suggests that we are now in a unique political climate embodied by the passage of the Second Chance Act under President George W. Bush—a climate that is substantially different than the era marked by President Bill Clinton's Omnibus Crime Bill.¹ Others, such as Jonathan Simon at Berkeley, have suggested that our prison population is a bubble that will eventually burst. In his article in Daedalus, Clearing the "Troubled Assets" of America's Punishment Bubble, Simon suggests that the crisis of mass incarceration can be mapped onto the housing crisis and argues that the analogy may reveal potential remedies to the current situation.²

In previous work, I have suggested that the growth in prisons during the 1990s may resemble the real estate bubble we experienced in the 2000s. There are lots of parallels between the indebtedness that came with the process of prison building—including the excess "real estate" capacity in prisons, irresponsible state borrowing, and growth beyond our capacity.³ And there is some evidence that the rate and number of persons incarcerated are declining. Professor John Pfaff at Fordham will present evidence at this conference about the historical

1. Kara Gotsch, Bipartisan Justice, The Am. Prospect, Dec. 2010, available at http://prospect.org/cs/articles?article=bipartisan_justice#. Incidentally, this issue of The American Prospect is entirely dedicated to mass incarceration and has a number of interesting contributions.

2. Jonathan Simon, Clearing the "Troubled Assets" of America's Punishment Bubble, Daedalus, Summer 2010, at 91. Simon has also posted a blog on this topic: http://governingthroughcrime.blogspot.com/search?q=great+recession.

3. Bernard E. Harcourt, The Illusion of Free Markets 238 (2011).

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trajectory of incarceration, revealing that prison populations reached a high point in 2008, but began to subside in 2009 and 2010.⁴ By the end of 2010, the number of persons under supervision by adult correctional authorities declined by 1.3%, or 91,000 offenders, reaching a total population of 7.1 million.⁵ The number of incarcerated individuals in jail experienced a percentage decline of approximately 2.4%, and the number of persons in the prison population decreased by 0.4% for 2010.⁶ So we have indeed witnessed a slight plateau and, over the last year or year and a half, some declines in the prison numbers and rates.

But not everyone is as sanguine or optimistic about the economic crisis's long-term effects on prison populations. Professor Marie Gottschalk, in her Daedalus 2010 article Cell Blocks and Red Ink,⁷ argues that the economic crisis alone will not necessarily be a catalyst for decarceration. She writes that "mounting fiscal pressures on their own will not spur communities, states, and the federal government to empty jails and prisons."⁸ Her historical analysis of the twentieth century suggests that times of economic distress and growing economic inequalities often ignite support for more punitive penal policies. I tend to agree with Professor Gottschalk that the economic crisis alone is unlikely to bring about future declines in the population without real political leadership in this area. Professor Gottschalk writes that the deinstitutionalization of mental hospitals in the 1960's and 70's "demonstrates the enormous importance of the political context for the development and implementation of

4. U.S. Dept. of Just., Bureau of Just. Stat., NCJ-236319, Correctional Population in the United States, 2010, at 3 (December 2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf.

5. Id. at 1.

6. Id. at 3.

7. Daedelus 2010 was, incidentally, a particularly excellent volume addressing the problem of mass incarceration

8. Marie Gottschalk, Cell Blocks and Red Ink: Mass Incarceration, the Great Recession & Penal Reform, Daedalus, Summer 2010, at 62 [hereinafter Gottschalk, Cell Blocks]. The original formulation of Gottschalk's argument traces to her earlier book, where she argued that financial crisis does not necessarily mean that Left and Right will end up reaching across the aisle or that the results will be a reduction in punishment. See Marie Gottschalk, The Prison and the Gallows 240-45 (2006).

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successful federal and state policies to shrink state institutions."⁹ I will return to this idea later, but it does indeed seem that political leadership is crucial to achieving long-term gains.

So what will ultimately happen? Is it possible to reform the criminal justice system in our time of economic crisis? To be honest, I am not sure and I do not have a crystal ball. Any prediction I make would, in truth, be more a reflection of my personality than a statement about reality. These kinds of predictions resemble a Rorschach test: they tell us far more about the personality and psychological well-being of the person predicting that they do about what will actually happen.

***

Rather than lying down on the couch and confessing my personality, I would like to take a step back and ask a larger question, namely: Why is the "criminal," why is this character that we call "the criminal," so often overlooked by social justice reformers? Why, for instance, did the Civil Rights Movement walk right past the criminal justice system and never really see it? Why did the Civil Rights Movement never really address it? How come the criminal justice system has been so resistant to civil rights interventions?

I spent a number of years working with Stephen Bright—who will be speaking after lunch and who has led the Southern Center for Human Rights for many years—litigating death penalty cases in the state of Alabama. I was always struck by the fact that the criminal justice system was the exceptional space that civil rights discourse had not touched. Back then I often found myself in an Alabama small town courthouse, looking around at the defendants, shackled and chained to each other in their orange jumpsuits, and feeling that the image harkened back to the antebellum period. How come the Civil Rights movement had made such little gains in the criminal justice arena? Why did the communists come to the rescue of the Scottsboro Boys in the 1930s instead of the NAACP?¹⁰ What was the resistance

9. Gottschalk, Cell Blocks, supra note 7, at 68.

10. See generally Dan T. Carter, Scottsboro: A Tragedy of the American South (1979).

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in the punishment field? Why do we still see so much exclusion and discrimination around us?

The problem, I take it, precedes the modern period. Much of the story revolves around race and can be traced back to slavery and to lynching. Loi'c Wacquant has excellent work on this, particularly with regard to what he calls the "deadly symbiosis," and the four stages of the peculiar institution.¹¹ Wacquant traces a causal, historical relationship of homologous institutions that, through historical sequencing and substitution effects, led from slavery to Jim Crow, which itself resulted in the great migration and the creation of Northern ghettos, ultimately leading to "hyper-ghettoization and mass incarceration." His work has been powerful and influential. More recent work, such as Michelle Alexander's book on The New Jim Crow, places similar emphasis on the way in which the criminal justice system has replaced other mechanisms of social coercion.¹²

Michelle Alexander does an excellent job capturing the racial dimension of the problem. The percentage of non-white admissions to prisons over the course of the 20th century has risen consistently, from less than a third to more than two-thirds over the course of the century. It has been a consistent trend.¹³Adam Gopnik's article in this week's The New Yorker, titled The Caging of America,¹⁴ contains an additional stunning fact on the relationship between race and incarceration. "[T]here are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery . . . ."¹⁵ Of course, the total population has grown significantly since slavery, but the statistic remains profound—we

11. See generally Loi'c Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, 3...